Preview of Jack Goldsmith's Book on Bush and DOJ

Check out next Sunday's New York Times' magazine article by Jeffrey Rosen on Jack Goldsmith's book that discusses, among other things, what went on behind the scenes with Ashcroft, Gonzales and the NSA wiretapping program. Goldmsith is the former head of the DOJ's Office of Legal Counsel

The article contains a number of new disclosures. But first, some background. Goldsmith is a conservative. He supports the war on terror. Here's where he's coming from:

Goldsmith notes, everywhere the president looks, critics — as well as his own lawyers — are telling him that pre-emptive actions may violate international law as well as U.S. criminal law. What, exactly, are the legal limits of executive power in the post-9/11 world? How should administration lawyers negotiate the conflict between the fear of attacks and the fear of lawsuits?

In Goldsmith’s view, the Bush administration went about answering these questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of executive power. As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”


On the role of the Office of Legal Counsel:

[T]he office has two important powers: the power to put a brake on aggressive presidential action by saying no and, conversely, the power to dispense what Goldsmith calls “free get-out-of jail cards” by saying yes. Its opinions, he writes in his book, are the equivalent of “an advance pardon” for actions taken at the fuzzy edges of criminal laws.

Now, some of the more interesting disclosures:

Who was running the show?

In the Bush administration, however, the most important legal-policy decisions in the war on terror before Goldsmith’s arrival were made not by the Office of Legal Counsel but by a self-styled “war council.” This group met periodically in Gonzales’s office at the White House or Haynes’s office at the Pentagon. The members included Gonzales, Addington, Haynes and Yoo.

The "largest presence in the room" was usually Cheney's guy, Dick Addington.

Goldsmith puts the bulk of the responsibility for the excesses of the Office of Legal Counsel on the White House. “I probably had a hundred meetings with Gonzales, and there was only one time I was talking about a national-security issue when Addington wasn’t there,” Goldsmith told me. “My conflicts were all with Addington, who was a proxy for the vice president. They were very, very stressful.”

There's a lot of detail on Goldsmith's withdrawal of John Yoo's torture memorandum and disagreement over treatment of detainees.

Then, Rosen moves on to the warrantless NSA program.

In Goldsmith’s estimation, the unnecessary unilateralism of the Bush administration reached its apex in the controversy over wiretapping and secret surveillance.

....In his book, Goldsmith claims that Addington and other top officials treated the Foreign Intelligence Surveillance Act the same way they handled other laws they objected to: “They blew through them in secret based on flimsy legal opinions that they guarded closely so no one could question the legal basis for the operations,” he writes.

Finally, onto the infamous Ashcroft hospital visit. Goldsmith was a witness to it.

As he recalled it to me, Goldsmith received a call in the evening from his deputy, Philbin, telling him to go to the George Washington University Hospital immediately, since Gonzales and Card were on the way there. Goldsmith raced to the hospital, double-parked outside and walked into a dark room. Ashcroft lay with a bright light shining on him and tubes and wires coming out of his body.

Suddenly, Gonzales and Card came in the room and announced that they were there in connection with the classified program. “Ashcroft, who looked like he was near death, sort of puffed up his chest,” Goldsmith recalls. “All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.”

The money quote: Mrs. Ashcroft stuck her tongue out at Gonzales and Card when they left:

After a bit of silence, Goldsmith told me, Gonzales thanked Ashcroft, and he and Card walked out of the room. “At that moment,” Goldsmith recalled, “Mrs. Ashcroft, who obviously couldn’t believe what she saw happening to her sick husband, looked at Gonzales and Card as they walked out of the room and stuck her tongue out at them. She had no idea what we were discussing, but this sweet-looking woman sticking out her tongue was the ultimate expression of disapproval. It captured the feeling in the room perfectly.”

Goldsmith also has some criticism of President Bush. He doesn't think he understood what was going on.

In Goldsmith’s view, an indifference to the political process has ultimately made Bush a less effective wartime leader than his greatest predecessors. Surprisingly, Bush, who is not a lawyer, allowed far more legalistic positions in the war on terror to be adopted in his name, without bothering to try to persuade Congress and the public that his positions were correct. “I don’t know if President Bush understood how extreme some of the arguments were about executive power that some people in his administration were making,” Goldsmith told me. “It’s hard to know how he would know.”

Bush, Goldsmith says, overplayed his hand:

In retrospect, Goldsmith told me, Bush “could have achieved all that he wanted to achieve, and put it on a firmer foundation, if he had been willing to reach out to other institutions of government.” Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen. “I don’t think any president in the near future can have the same attitude toward executive power, because the other institutions of government won’t allow it,” he said softly. “The Bush administration has borrowed its power against future presidents.”

Bush may not have known better, but Addington certainly did. While there's plenty of blame to go around, I put Cheney and Addington at the center of it. See Glenn Greenwald today for more on Addington in the context of Rosen's article.

The book sounds like it's well worth reading. It will be out later this month. You can order it here.

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    The Pathetic Irony (5.00 / 3) (#2)
    by po on Tue Sep 04, 2007 at 03:26:55 PM EST
    "'The central irony is that people whose explicit goal was to expand presidential power have diminished it.'"

    No, actually, the central irony is that despite every thinking adult in this and other countries decrying the heavy-handed, needlessly partisan and inept and incompetent handling of the response to 20 lucky guys with box-cutters one fateful day in September 2001, this crew keeps on keeping on doing what it's doing.  And NOTHING HAPPENS.  

    What's more, when confronted with the fact that what they are doing is both unbelievably wrong and unnecessary to protect the Homeland, they keep doing it and, lest we be called names or someother group of jokers gets lucky, we keep allowing them to do it.  

    No, W and Cheney have not really weakened the Presidency.  They've strengthened it in ways we cannot even fathom.  Trust me, the next commander-in-chief -- democrat, republican, libertarian, socialist, you name it -- will pay mere lip service to the evils of Bush's ways.  And he or she will use every single last one of them and then seek to expand them, all in the name of safety from some unnameable fear.  

    Gitmo ain't gone.  Hundreds of Billions spent in Iraq.  Black sites still exist.  We don't torture because we redefined torture and that definition ain't getting edited.  FSIA court might as well be gone (it was oh so burdensome in the first place).  NSA's hardware / software is in place.  An entire covert operation to investigate IRAN's attempts to get NUCLEAR material was rendered ineffective.  All in the name of protecting the Homeland.


    No (none / 0) (#3)
    by kovie on Tue Sep 04, 2007 at 03:52:36 PM EST
    The "do-nothing congress" meme is tired, played out and disproven, and relies ENTIRELY upon the fallacy of the excluded middle. I.e. that because congress hasn't done EVERYTHING, and BushCo still retain SOME power, that they therefore haven't done ANYTHING, and still retain ABSOLUTE power.

    Which, of course, explains the steady stream of resignations from the executive, the various progressive bills that have come out of congress (whether or not signed by Bush), the showdowns over the Attorneys scandal, warrantless wiretaps, Iraq, etc. And, of course, the destruction of the GOP.

    You misunderstand the slow-moving nature of our democratic system, which was not built to provide instant results to satisfy the impatient. Which is precisely why their grab for permanent executive power was temporary and largely illusory. Democrats will expand their congressional majorities in '08 and regardless of the party of the next president (which is very likely to be their own), will reassert their constitutional prerogatives and restore the balance between the two branches, and if anything make the executive weaker than it was before Bush stole it. If the next president tries to maintain let alone expand the "powers" that Bush has tried to arrogate to himself, they will find themselves impotent to do so. But I doubt that they'll try.


    Looks like Georgue's maxed out his credit cards (none / 0) (#1)
    by kovie on Tue Sep 04, 2007 at 03:22:50 PM EST
    with congress and the courts, which is completely in line with how he's grossly mismanaged the nation's finances. He's been like a drunken Zsa Zsa Gabor at Cartier's with a no max credit card, charging things up like there's no tomorrow and then handing the bills to the kids.

    Nothing really new here, but it's nice to see another former insider confirm what we've known for years, that Bush and Cheney have been treating congress, the courts, the constitution and country (the 4 C's?) like they were co-dependant spouses who could be alternately abused, exploited and ignored, to be bought off with a trinket or two now and then to keep them quiet and content. Except that they forgot Yamamoto's famous quote right after Pearl Harbor: "I am afraid that we've awaken a sleeping giant".

    Goldsmith is quite correct here, that Bush & Co. erred gravely when, in order to--in their minds--expand executive power, they decided to act as if the other two branches didn't exist, or were mere formalities to rubber-stamp or tacitly comply with the executive's assertions of power. It worked--or seemed to work--for a while, but is now coming back to haunt them, electorally and politically, slowly but surely. They could have worked with the other two branches to expand these powers more formally, but of course they were too arrogant--which I've always viewed as a combination of immaturity, insecurity and stupidity manifesting themselves as fake confidence, insolence and meanness--and acted like they didn't exist or could be ignored. And we all know how that worked out for them--and the country (Iraq, '06 elections, 25%, mass resignations, etc.).

    Bush has always been a clueless moron who simply does as told, but Cheney will forever be remembered as the stupidest jerk to ever have this much power in US history. How he ever thought that he could get away with this is beyond me.

    Reduced presidential power? (none / 0) (#4)
    by Al on Tue Sep 04, 2007 at 04:26:31 PM EST
    "I don't think any president in the near future can have the same attitude toward executive power, because the other institutions of government won't allow it," he said softly. "The Bush administration has borrowed its power against future presidents."

    I don't see why. If the other institutions of government (i.e. Congress and the judiciary) have been so submissive to Bush, why should we expect that they would all of a sudden get a spine? On the contrary, I think Bush has set a very bad precedent for the future.

    Mrs. Ashcroft (none / 0) (#5)
    by Maryb2004 on Tue Sep 04, 2007 at 05:22:03 PM EST
    I've been thinking all afternoon and I have absolutely no memory at all of Janet Ashcroft when she was first lady of my state other than standing next to John.  Which makes the picture of her sticking her tongue out even better.

    Dick? (none / 0) (#7)
    by mattd on Tue Sep 04, 2007 at 09:02:05 PM EST
    The "largest presence in the room" was usually Cheney's guy, Dick Addington.

    Isn't it David Addington?

    Cheney has already given Dicks everywhere a bad name; there's no need to pile on.